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Perry Mason, Boston Legal, and Bull are all TV shows that featured courtroom witnesses swearing to tell the truth. Attorneys frequently remind witnesses they are under oath and can be charged with perjury if they lie on the witness stand.

Similar to testimony in court, an affidavit is a written declaration of truth equivalent to swearing under oath. A notary public, certain court officers or government officials sign the document along with the affiant–a person who makes the statement.

However, depositions let the parties know what they can expect from the witness at trial. A deposition may also help get valuable testimony from essential witnesses who cannot testify during the trial. In that case, they are introduced into evidence.

The main differences between an affidavit and a deposition are:

  • Affidavits are ex parte and without notice
  • Depositions come after notifying the opposing party, who can then cross-examine the witness

Let's explore more differences below.

What Is an Affidavit or Declaration?

Affidavits or declarations under 22 CFR 92.22 are written statements taken under oath. An affiant must always take an oath under a person with authority to do so without any notice to any adverse parties.

In all cases, an affidavit must be notarized by a notary public. "Notarized" means that the facts in the affidavit have been verified under oath, the document signed, and a notary public has certified the document. A notary must witness your signature.

It is criminal to sign an affidavit containing false information. For this reason, it is essential to read the document carefully before signing it to ensure that it has accurate and true information. An affidavit must clarify any statements made by the affiant are opinions or beliefs.

What is a Deposition?

Under § 900.61, depositions are the sworn testimonies of a witness outside of court as part of discovery. Depositions may be used in court under certain circumstances. The term deponent refers to the person who is being deposed.

Different jurisdictions have different deposition rules, also known as State Civil Procedure Rules. Depositions by oral questions are governed by Rule 30 of the Federal Rules of Civil Procedure. While the written ones are governed by Rule 31 of the same Civil Procedure.

Let’s delve into the differences between these two types of depositions, oral and written:

Oral Depositions

An oral deposition does not involve a court directly; each party initiates and supervises the process. The parties present at a deposition include:

  • The deponent
  • Attorneys for all interested parties
  • A person qualified to administer oaths

The stenographer may record a deposition, but electronic recording is becoming more common. All parties may question the witness during the deposition. Depositions are a deliberate process, so lawyers may not coach their clients' testimony, and they may risk not objecting to questions in court.

Oral depositions are inadmissible at trial as they are hearsay. A deposition witness, however, is entitled to three exceptions to the hearsay rule.

  1. When a party admits to something against their interests in a deposition.
  2. When a witness contradicts their deposition during the trial.
  3. Finally, the case of an unavailable witness at trial (Federal Rules of Evidence, Article VIII).

Written Depositions

Written questions may be used in depositions as well. Parties submit questions ahead of time in this kind of deposition and the deponent answers only those questions. In contrast to oral depositions, written depositions are less expensive since lawyers do not have to attend.

However, this method has the disadvantage that it is difficult to follow up on a witness's answers. Instead of depositions, in these cases parties most commonly use interrogatories.

Key Differences Between Affidavits and Depositions

Here is a table summarizing some of the differences we have highlighted between these two concepts:

Affidavit Deposition
Affidavits are ex parte and without notice The deposition comes after notifying the opposing party
No cross-examination is necessary, but the information given must be true and correct Cross-examination of a witness is permitted
Affidavits are always written Depositions can be spoken and recorded
An affidavit is a written declaration of truth equivalent to swearing under oath A deposition is sworn evidence outside of court
Courts, attorneys, and financial institutions create a majority of affidavit forms Attorneys learn what a witness knows about a case and preserve their testimony in case of trial

Examples of Affidavits and When to Use Each

Courts, attorneys, and financial institutions create the majority of affidavit forms. An attorney prepares the affidavit form when they prepare court documents, wills, or powers of attorney on your behalf.

  • Financial affidavit: Many courts require you to submit a financial affidavit when you are going through a divorce.
  • Loan affidavit: For a loan application, the lender will provide the right affidavit forms.
  • General affidavit: A spouse may need an affidavit to qualify for marital benefit when selling or verifying their marital status before selling the property. It is important to tailor such general affidavits to each case.
  • Affidavits in court: It is common for witnesses to give oral testimony at a court trial. However, there may be situations when affidavits are used, such as when a witness cannot appear.
  • Affidavit of a lost document: Often, an affidavit can re-establish the authenticity of a vital legal document that was lost or destroyed. For example, an affidavit and indemnity agreement may allow you to recover your funds in the case of a lost or a destroyed promissory note.
  • Affidavit of identity theft: You may need to provide an affidavit to prove identity theft to creditors, banks, and credit bureaus.

The Deposition Process

Deponents must be adequately notified before a deposition takes place. Local rules may vary, but five days' notice is usually sufficient. Non-parties to the lawsuit must be served with a subpoena (a court-approved summons).

Interrogatories and document production requests often precede depositions since evidence from those documents often informs questions posed to deponents. The court reporter attaches copies of any documents, photographs, or other evidence referred to during the deposition as exhibits to the transcript following the deposition.

Court reporters as well as notaries public generally lead the deponent through an oath before the deposition begins to ensure that the testimony will be accurate and true.

Purpose and examples of depositions

Depositions allow attorneys to learn what a witness knows about a case and preserve that witness's testimony in case of trial. Depositions and other discovery tools (such as obtaining documents and admitting specific facts) are expected in civil cases, which enable both sides to evaluate their arguments realistically.

Ideally, this information will help them settle the matter. But depositions in criminal cases serve different purposes. In most states, criminal depositions are only allowed if a judge concludes that a vital witness will be unable to provide testimony at trial.

Several states do not require judges' approval before deposing in criminal cases. In some states, criminal depositions are also called conditional examinations.

Consult your state's notary laws if you are unfamiliar with or have questions about affidavits, depositions, or other legal documents.

Helpful Resources:

Civil Procedure Laws - Cornell Law School

State Notary Laws - National Notary

Federal Rules of Civil Procedure - U.S.C.

Perry Mason, Boston Legal, and Bull are all TV shows that featured courtroom witnesses swearing to tell the truth. Attorneys frequently remind witnesses they are under oath and can be charged with perjury if they lie on the witness stand.

Similar to testimony in court, an affidavit is a written declaration of truth equivalent to swearing under oath. A notary public, certain court officers or government officials sign the document along with the affiant–a person who makes the statement.

However, depositions let the parties know what they can expect from the witness at trial. A deposition may also help get valuable testimony from essential witnesses who cannot testify during the trial. In that case, they are introduced into evidence.

The main differences between an affidavit and a deposition are:

  • Affidavits are ex parte and without notice
  • Depositions come after notifying the opposing party, who can then cross-examine the witness

Let's explore more differences below.

What Is an Affidavit or Declaration?

Affidavits or declarations under 22 CFR 92.22 are written statements taken under oath. An affiant must always take an oath under a person with authority to do so without any notice to any adverse parties.

In all cases, an affidavit must be notarized by a notary public. "Notarized" means that the facts in the affidavit have been verified under oath, the document signed, and a notary public has certified the document. A notary must witness your signature.

It is criminal to sign an affidavit containing false information. For this reason, it is essential to read the document carefully before signing it to ensure that it has accurate and true information. An affidavit must clarify any statements made by the affiant are opinions or beliefs.

What is a Deposition?

Under § 900.61, depositions are the sworn testimonies of a witness outside of court as part of discovery. Depositions may be used in court under certain circumstances. The term deponent refers to the person who is being deposed.

Different jurisdictions have different deposition rules, also known as State Civil Procedure Rules. Depositions by oral questions are governed by Rule 30 of the Federal Rules of Civil Procedure. While the written ones are governed by Rule 31 of the same Civil Procedure.

Let’s delve into the differences between these two types of depositions, oral and written:

Oral Depositions

An oral deposition does not involve a court directly; each party initiates and supervises the process. The parties present at a deposition include:

  • The deponent
  • Attorneys for all interested parties
  • A person qualified to administer oaths

The stenographer may record a deposition, but electronic recording is becoming more common. All parties may question the witness during the deposition. Depositions are a deliberate process, so lawyers may not coach their clients' testimony, and they may risk not objecting to questions in court.

Oral depositions are inadmissible at trial as they are hearsay. A deposition witness, however, is entitled to three exceptions to the hearsay rule.

  1. When a party admits to something against their interests in a deposition.
  2. When a witness contradicts their deposition during the trial.
  3. Finally, the case of an unavailable witness at trial (Federal Rules of Evidence, Article VIII).

Written Depositions

Written questions may be used in depositions as well. Parties submit questions ahead of time in this kind of deposition and the deponent answers only those questions. In contrast to oral depositions, written depositions are less expensive since lawyers do not have to attend.

However, this method has the disadvantage that it is difficult to follow up on a witness's answers. Instead of depositions, in these cases parties most commonly use interrogatories.

Key Differences Between Affidavits and Depositions

Here is a table summarizing some of the differences we have highlighted between these two concepts:

Affidavit Deposition
Affidavits are ex parte and without notice The deposition comes after notifying the opposing party
No cross-examination is necessary, but the information given must be true and correct Cross-examination of a witness is permitted
Affidavits are always written Depositions can be spoken and recorded
An affidavit is a written declaration of truth equivalent to swearing under oath A deposition is sworn evidence outside of court
Courts, attorneys, and financial institutions create a majority of affidavit forms Attorneys learn what a witness knows about a case and preserve their testimony in case of trial

Examples of Affidavits and When to Use Each

Courts, attorneys, and financial institutions create the majority of affidavit forms. An attorney prepares the affidavit form when they prepare court documents, wills, or powers of attorney on your behalf.

  • Financial affidavit: Many courts require you to submit a financial affidavit when you are going through a divorce.
  • Loan affidavit: For a loan application, the lender will provide the right affidavit forms.
  • General affidavit: A spouse may need an affidavit to qualify for marital benefit when selling or verifying their marital status before selling the property. It is important to tailor such general affidavits to each case.
  • Affidavits in court: It is common for witnesses to give oral testimony at a court trial. However, there may be situations when affidavits are used, such as when a witness cannot appear.
  • Affidavit of a lost document: Often, an affidavit can re-establish the authenticity of a vital legal document that was lost or destroyed. For example, an affidavit and indemnity agreement may allow you to recover your funds in the case of a lost or a destroyed promissory note.
  • Affidavit of identity theft: You may need to provide an affidavit to prove identity theft to creditors, banks, and credit bureaus.

The Deposition Process

Deponents must be adequately notified before a deposition takes place. Local rules may vary, but five days' notice is usually sufficient. Non-parties to the lawsuit must be served with a subpoena (a court-approved summons).

Interrogatories and document production requests often precede depositions since evidence from those documents often informs questions posed to deponents. The court reporter attaches copies of any documents, photographs, or other evidence referred to during the deposition as exhibits to the transcript following the deposition.

Court reporters as well as notaries public generally lead the deponent through an oath before the deposition begins to ensure that the testimony will be accurate and true.

Purpose and examples of depositions

Depositions allow attorneys to learn what a witness knows about a case and preserve that witness's testimony in case of trial. Depositions and other discovery tools (such as obtaining documents and admitting specific facts) are expected in civil cases, which enable both sides to evaluate their arguments realistically.

Ideally, this information will help them settle the matter. But depositions in criminal cases serve different purposes. In most states, criminal depositions are only allowed if a judge concludes that a vital witness will be unable to provide testimony at trial.

Several states do not require judges' approval before deposing in criminal cases. In some states, criminal depositions are also called conditional examinations.

Consult your state's notary laws if you are unfamiliar with or have questions about affidavits, depositions, or other legal documents.

Helpful Resources:

Civil Procedure Laws - Cornell Law School

State Notary Laws - National Notary

Federal Rules of Civil Procedure - U.S.C.